State v. Stuart , 250 Or. 303 ( 1968 )

GOODWIN, J.

' This is an appeal by the state from a judgment for the defendant on a demurrer to the indictment.^① Such an'appeal is authorized by ORS 138.060(1).

■ The indictment is in two counts. The first count charges the crime of “embezzlement by bailee” committed as follows:

“The said ORVILLE LAVERN STUART on or about the 4th day of May, A.D. 1967, in the County of Multnomah and State of Oregon, and : having possession of certain personal property, to-wit, a Mercury automobile, the personal property of Airways Rent-A-Car of Oregon, a corporation, and over the value of $75.00, which said Mercury automobile had theretofore been delivered to and intrusted to said defendant’s care, control and use, the aforesaid defendant did unlawfully and feloniously fail, neglect and refuse to deliver, keep and account for the aforesaid personal property according to the nature of his trust * *

The second count charges the crime of “possessing stolen motor vehicle” as a. part .of the same act and transaction alleged in the first count and committed as follows:

“The said ORVILLE LAVERN STUART on or about the 4th day of May, 1967, in the County of Multnomah and State of Oregon, and not being an officer of the law engaged in the performance of his duty as such officer, the said defendant did unlawfully and feloniously have in his possession a certain stolen motor vehicle, to-wit, a Mercury automobile, the property of Airways Rent-A-Car of Oregon, a corporation, said defendant having reason to believe that said motor vehicle had theretofore been stolen * * *.”

The state concedes that each count refers to the same automobile and, as the indictment alleges, each count involves the same act and transaction.

The ground of the demurrer is that the count charging embezzlement of the automobile is so inconsistent with that charging possession of a stolen automobile that if one is true the other cannot be, since in embezzlement the taking is always lawful, while property is “stolen” only if unlawfully acquired. Thus, according to the defendant, an improper joinder appears from the face of the indictment.

Count I of the indictment charges a violation of OJttS 3.65.03-0, which defines the crime of embezzlement, generally known as larceny by bailee. Count II charges a violation of ORS 483.990(4), which in part codifies a special statute relating to motor vehicles first enacted in 1927. Oregon Laws 1927, ch 864, §3 (9-e). The particular subsection in question denounces certain acts, and provides that any person “who has in his possession any motor vehicle which he knows, or has reason to believe, has been stolen, and who is not an officer of the law engaged at the time in the performance of his duty as snch officer, shall be deemed guilty of a felony.” The motor-vehicle statute prescribes heavier penalties than those found in OES 165.045, the general statute defining the crime of buying, receiving or concealing stolen property.

OES 132.560 provides:

“The indictment must charge but one crime, and in one form only, except that:

“(1) Where the crime may be committed by the ' use of different means, the indictment may allege the means in the alternative.

“(2) When there are several charges against any person or persons for the same act or transaction, instead of having several indictments, the whole may be joined in one indictment in several counts; and if two or more indictments are found in such cases, the court may order them to be consolidated.”

Subsection (2), an amendment adopted in 1933, Oregon Laws 1933, ch 40, appears to have been considered by this court in but two cases: State v. Tracy, 246 Or 349, 425 P2d 171 (1967); State v. Huennekens, 245 Or 150, 420 P2d 384 (1966). The facts of these cases are not relevant here, but both decisions recognize the obvious truth that if multiple crimes charged in one indictment could not have been part of the same act or transaction the indictment is defective. Cf., State v. Carlton, 233 Or 296, 298, 378 P2d 557 (1963). Whether the impossibility inheres in the facts or arises out of the law, an indictment so framed is necessarily demurrable. We do not understand this to be disputed by the state; rather, the state contends that there is no inconsistency between the two counts for the reason that a person may be convicted of embezzling an automobile and of possession of a “stolen” automobile even though the proof shows that the “stolen” automobile was in fact “embezzled.” This last contention presents the principal issue now before us.

There is no gainsaying the defendant’s contention that the word “steal” as used in Oregon larceny statutes usually is found in context with other words describing a felonious asportation, as in ORS 164.810(1): “Any person who steals the property of another, or who willfully takes, carries, leads or drives away the property * * See, also, Black’s Law Dictionary, “steal,” at 1583 (1957). We do not agree, however, that it follows that the Legislative Assembly intended in ORS 481.990(4) to limit the word “stolen” to automobiles that had been taken from their owners by an act of trespass. See Black’s Law Dictionary, supra at 1584.

The context in which Oregon Laws 1927, ch 364, §3 (9-e) (now ORS 481.990(4)) was written reveals an intent to control two related evils: (1) falsification of certificates of title to motor vehicles, and (2) trafficking in unlawfully possessed automobiles. It is unlikely that the Assembly intended to declare unlawful the possession (with requisite knowledge) of an automobile taken by a trespasser and at the same time intended to leave untouched the same character of possession of an automobile taken by a felonious bailee. Rather, it seems reasonable to believe, the Assembly meant to control traffic in automobiles for which, by reason of criminal misconduct, a good title could not be given, and for which the word “stolen” provided a commonly understood and general definition.

It is, of course, possible to construct a logical argument to the effect that since “stolen” is the past participle of “steal,” OES 481.990(4) uses the word with all the limitations that have been engrafted upon the word “steal” by the common law and statutory law of larceny in this state. We believe, however, that such a statutory construction is more faithful to theory than to reality. Since no law-enforcement purpose can be discerned for such an intent upon the part of the Assembly, it would be necessary to ascribe such an intent to the realm of whimsy or to legislative fecklessness. Under OES eh 174^② we are obliged to resort to neither of these uninviting ascriptions. See United States v. Turley, 352 US 407, 77 S Ct 397, 1 L Ed 2d 430, 56 ALR2d 1300 (1957).

The indictment is not a model pleading, but it advises the defendant that he is charged with two related offenses arising out of the same unlawful transaction: (1) felonious conversion of an automobile by a bailee thereof; and (2) wrongful possession of an automobile known by the possessor to have been obtained by criminal means within the commonly understood meaning of the word “stolen.” See Nugent v. Union Auto Ins. Co., 140 Or 61, 65, 13 P2d 343 (1932). Accordingly, the indictment was good against the demurrer, and the demurrer should have been overruled.

Eeversed and remanded.

① The defendant filed a motion to strike the indictment, which the parties agreed should be treated as a demurrer.

② ORS 174.020 “In the construction of a statute the intention of the legislature is to be pursued if possible; and when a general and particular provision are inconsistent, the latter is paramount to the former. So a particular intent shall control a general one that is inconsistent with it.”

ORS 174.030 “Where a statute is equally susceptible of two interpretations, one in favor of natural right and the other against it, the former is to prevail.”